Last week, we reported on a $10 million award issued by the State to help revitalize downtown Hicksville. Well, the Governor is at it again. On August 8th, Governor Cuomo announced the winners of the third round of the Downtown Revitalization Initiative; and Central Islip is the big winner on Long Island.

The State’s Downtown Revitalization Initiative, started in 2016, is touted as being “a comprehensive approach to boosting local economies by transforming communities into vibrant neighborhoods where the next generation of New Yorkers will want to live, work, and raise a family.”   The ten Regional Economic Councils each get to select one downtown from its region “that is ripe for revitalization and has the potential to become a magnet for redevelopment, business, job creation, greater economic and housing diversity, and opportunity.” The selection is made from communities that submit applications to the applicable Regional Economic Council. The criteria for selection “includes: physical environment, past investment, future potential, recent or impending job growth, support for the local vision, and readiness.” The Village of Westbury was Long Island’s first round winner. Hicksville was its second round winner.

The Downtown Revitalization Initiative process is described in great detail in the State’s April 2018 Downtown Revitalization Initiative Guidebook.  The revitalization effort starts with a Local Planning Committee.  This committee, composed of local stakeholders, oversees the development of the strategic plan for the redevelopment.  The State provides this committee with support and technical assistance from a team of planners and consultants. The process also includes public engagement initiatives “to enable residents, public and private agencies, community organizations, local businesses, and institutions of learning to work towards a shared vision for a more vibrant downtown.”

So what is Central Islip’s proposed vision for a more vibrant downtown? According to the Central Islip Application submitted to the Long Island Regional Economic Council, the vision for Central Islip’s downtown includes:

    • Transit oriented development aimed at encouraging transit use and other forms of green transportation. This priority will center around the former Central Islip Train Station on Carleton Avenue.
    • Purchasing blighted and underused properties for use as parking facilities to increase downtown parking and facilitate redevelopment.
    • Rezoning and lot consolidation to encourage downtown redevelopment and growth, eliminating uses that are not compatible with a downtown, such as vehicle repair shops, and consolidating substandard lots to make them usable and encourage appropriate development.
    • Redeveloping the former Central Islip train station property, which would include transforming a brownfield site into a parking lot for an adjacent vacant piece of property owned by the Town’s Community Development Agency.
    • Expanding the Central Islip LIRR Train Station parking lot by adding 100 new parking spaces.
    • Acquiring and constructing cross access easements between Town parking facilities and adjacent properties to create shared parking to assist with traffic flow and mitigate traffic hazards along Carleton Avenue.
    • Redeveloping the former Central Islip Fire House into a mixed-used building or community center.
    • Implementing the Town’s Complete Streets Policy throughout the downtown to enhance affordable transportation, driving commerce in downtown, calming traffic and enhancing the general health and welfare of the residents of the Central Islip community.
    • Constructing Traffic Roundabouts and other safety mitigation techniques.

This expansive and impressive vision will take time to achieve, and the $10 million award is only a fraction of the investment that will be needed to achieve it. Hopefully, the Town of Islip is able to convert its vision into a thriving downtown for the Central Islip community. Stay tuned.

On July 3rd, Governor Cuomo announced that the state was giving the Town of Oyster Bay a $10 million Downtown Revitalization Initiative award that will help underwrite four transformative projects in downtown Hicksville. These projects are aimed at increasing transportation access, improving walkability, and attracting new housing opportunities. Here’s what is planned with the Revitalization Initiative money.

The Hicksville Station Access Improvements. These improvements will create a new entry drive for the Hicksville LIRR station lobby. This project will create and upgrade turning lanes, reconfigure medians, and install and upgrade traffic signals. The famous eagle statue will be relocated to a place of prominence in the median. It is expected to spiffy up the appearance of the area, improve station access for cars and pedestrians, relieve congestion along Route 106 and Newbridge Road and lengthen the rider drop-off area, which will include a new protective canopy. About $3.6 million of the award will be used for this project.

The Public Space at New Station Plaza. There will be new open public space north of the Hicksville LIRR station lobby. The plaza will allow for intermodal transfers, enhance pedestrian experience and provide much needed green space for residents. A new commercial corridor on West Barclay Street will be linked to the open space. Wider sidewalks that will improve pedestrian circulation will also be constructed. About $2.5 million of the award will be used for this project.

The Public Space at Festival Plaza. A new pedestrian passageway will be created along with public open space north of the LIRR Station to establish a safe and engaging walkway from the Hicksville LIRR station lobby to Jerusalem Avenue and nearby parking lots. Seasonal and temporary activities for commuters and residents will be available in the open space. About $2.5 million of the $10 million award will pay for this project.

New Housing & Retail at Hicksville Station. Underutilized property adjacent to the Hicksville LIRR station on Nelson Avenue will be redeveloped for mixed uses, including 3 buildings with 180 mixed-income residential units, and below grade parking. Street-level retail and restaurants along with a public plaza and green space will also be part of this project. About $1 million of the award will be used for this project.

Of course, $10 million will not be enough to complete these four transformative projects. So, where is the rest of the money expected to come from?  The Hicksville Downtown Revitalization Plan, developed by the Hicksville Planning Committee, appears to have the answer to this question. Some of the funding will come from the public sector aimed at expanding the open spaces. Private sector funding will come from developers aimed at the housing, retail, commercial and parking aspects of the projects.  In addition, the MTA is spending over $130 million to upgrade the Hicksville LIRR Station.  Big changes are coming to downtown Hicksville.

More information on the new downtown Hicksville is available on the Town of Oyster Bay website at http://oysterbaytown.com/hicksville-downtown-revitalization-initiative/

After six years and vigorous public comment, the New York State Department of Environmental Conservation (DEC) has adopted substantive amendments to the implementing regulations of the State Environmental Quality Review Act (SEQRA). The new regulations take effect on January 1, 2019 and will apply to all pending and future actions for which a determination of significance has not been made prior to the effective date.

The changes to the SEQRA regulations affect both substantive and procedural aspects of the SEQRA process. Of particular note are the changes to:  the list of Type I Actions (projects that carry a strong presumption of significant adverse environmental impact and typically result in the preparation of an Environmental Impact Statement [EIS]); the List of Type II Actions (projects that the DEC has pre-determined to not result in significant adverse environmental impacts and are exempt from environmental review); “scoping” (the procedural step which identifies the adverse environmental impacts to be studied in an EIS, and which will now be a mandatory step in the SEQRA process), and clarification on the requirements for preparing a Draft EIS (DEIS).

The amendments affecting Type I Actions (6 NYCRR §617.4) can be described generally as altering the thresholds which trigger certain Type I designations.

  • In cities, towns and villages having a population of 150,000 persons or less, the following are now Type I Actions:
    • The addition of 200 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 250 units.
    • The addition of parking for 500 vehicles or more.
  • In cities, towns and villages having a population of 150,001 persons or more, the following are now Type I Actions:
    • The addition of 500 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 1,000 units.
    • The addition of parking for 1,000 vehicles or more.

Long Island communities will be particularly interested in both of these thresholds. While the island is home to nearly 100 villages that will be subject to the lower threshold applied to municipalities of 150,000 persons or less, it is also the home to the Towns of Babylon, Brookhaven, Hempstead, Huntington, Islip, and Oyster Bay, all of which have populations in excess of 150,001 persons, according to recent census data. Projects in those town which have a large residential component (and are located outside of incorporated villages) will need to be mindful of the 500-unit threshold.

    • The amended SEQRA regulations preserve a limitation on the Type I designation for the creation of new residential units. As in the old SEQRA regulations, the number of new units alone is not the only factor in determining whether a Type I designation is appropriate. The project must also tie in to an existing community or public water or sewerage system. Thus, a project that proposes its own water and sewerage facilities will not necessarily trigger a Type I designation, even if the number of proposed units exceeds the numeric threshold.
  • Any Unlisted Action which exceeds 25% of any Type I threshold and which is located wholly or partially in, or contiguous to, a place or district that has been listed or has been determined to be eligible for listing on either the National or State Register of Historic Places is a Type I Action. This revision is something of a double-edged sword for developers in that while a project will no longer be Type I solely because of its proximity to a historic site—because the project must now also exceed 25% of some other Type I threshold under §617.4—the requirement that “eligible” sites also be considered increases the possibility that a project is located near a site capable of triggering a Type I designation.

The amendments affecting Type II Actions (6 NYCRR §617.5) add several new categories of actions that are exempt from environmental review going forward. They include:

  • Retrofitting an existing structure and its appurtenant areas with green infrastructure. While the phrase “green infrastructure” might evoke any number of green practices or technologies that have come to the forefront of eco-conscious design, the revised SEQRA regulations narrowly define the term as “practices that manage storm water through infiltration, evapo-transpiration and reuse…” The definition then includes an exclusive list of the specific practices that constitute “green infrastructure” for purposes of Type II exemption. Thus, the exemption is narrower than it would appear at first blush.
  • Installation of telecommunications cables in existing highway or utility rights of way and utilizing trenchless burial or aerial placement on existing poles. Notably, the exemption is limited to telecommunications “cables” and, therefore, does not include small cells, “nodes” or Distributed Antenna Systems (DAS), which have become prevalent in the telecommunications industry. Prior iterations of the Type II amendments did include co-location of telecommunications antennas as a new exempt category; however, that exemption was removed in response to public comment.
  • Installation of a solar array involving 25 acres or less of physical alteration and located on: a closed landfill; a commercial or industrial brownfield site or Environmental Restoration Project site that has received a certificate of completion; an inactive hazardous waste site (under certain conditions); or already disturbed area located within a publicly-owned wastewater treatment facility or an industrial zoned site.
  • Installation of a solar array on any existing structure, provided the structure is not listed on the Federal or State Register of Historic Places; determined to be eligible for listing on the historic registers; or within a district that has either been listed or determined to be eligible to be listed on the historic registers.
  • Reuse of a residential or commercial structure, or a mixed use residential and commercial structure, for a use which is permitted under applicable zoning, including uses by special permit, provided the reuse does not trigger any Type I threshold. Critics of this particular exemption argued that local zoning laws are often outdated; and as a result, the exemption may prevent environmental review of a use that, while legally permissible, is nonetheless out of touch with the present character of the district in which it is located. The DEC has countered that in almost all situations, a given project will be subject to some form of discretionary review, during which impacts of concern can be vetted and mitigated. Additionally, because the exemption encourages the reuse of structures, it will also reduce the use of virgin building materials and the creation of construction and demolition debris, which are deposited in landfills.

Under the current regulations, Scoping (6 NYCRR §617.8) is an optional step in the SEQRA process. However, as of January 1, 2019, scoping will be mandatory for “all” EISs, except for Supplement EISs prepared pursuant to 6 NYCRR §617.9(a)(7). Incidentally, lead agencies will no longer have the option of accepting a proposed DEIS in lieu of an environmental assessment form because submission of a DEIS must now be preceded by a scoping session and the lead agency’s acceptance of a final, written scoping document. Opponents of this change have argued that, for some projects receiving a positive declaration, the environmental assessment forms will be sufficient to identify the environmental impacts requiring study in an EIS. Therefore, for those projects, mandatory scoping prior to preparation of a DEIS will result in unnecessary delay of the SEQRA process and added expense for the project sponsor.

The amendments affecting DEIS preparation (6 NYCRR §617.9) seek to clarify the requirements for a complete DEIS and avoid undue delay of the SEQRA process while the sponsor, lead agency and public debate the adequacy of a DEIS’ contents. The regulations provide that a DEIS is complete when it: (1) meets the requirements of the written final scope and sections 617.8(g) and 617.9(b) of the SEQRA regulations; and (2) “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.” In addition, the regulations mandate that the completeness of a resubmitted DEIS be evaluated solely based on a list of written deficiencies provided by the lead agency during its review of the prior version of the DEIS (with some exceptions). Time will tell whether these particular amendments will have their desired effect of streamlining the DEIS phase of the SEQRA process. Reasonable minds may yet disagree on whether a DEIS “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.”

The 2018 SEQRA amendment contains additional changes, including additional Type II categories not discussed here and new publication requirements for SEQRA materials. A complete copy of the 2018 SEQRA amendment and related materials can be found on the DEC website at: https://www.dec.ny.gov/permits/83389.html.

If you have questions regarding SEQRA regulations, please contact me at pbutler@farrellfritz.com.

See also, related SEQRA topics written by blog-colleague Charlotte A. Biblow, by clicking here & here!

 

 

 

 

 

An application was made for a site plan to the Planning Board of the City of Poughkeepsie for a 24 two-bedroom unit condominium complex in four buildings on a 3.4 acre parcel adjacent to an historic district.   The site had existing mature trees on the perimeter of the property, some of which were proposed to be cut down and replaced with new trees.   On April 19, 2011, the City of Poughkeepsie Planning Board issued a negative declaration pursuant to the New York State Environmental Quality Review Act (“SEQRA”). The Historic Southside Neighborhood Association appealed the determination in an Article 78 Proceeding to the Dutchess County Supreme Court seeking an order annulling the negative declaration and directing the Planning Board to issue a positive declaration and proceed with an Environmental Impact Statement (“EIS”). See Jeanette Peterson as President of the Historic Southside Neighborhood Assn. v. Planning Board of the City of Poughkeepsie et al., Index No. 3511/2011, September 2, 2015.

The Supreme Court stated the standard in reviewing the negative declaration issued by the Planning Board was limited to “whether the agency identified the relevant areas of environmental concerns took a hard look at them, and made a reasonable elaboration of the grounds for its determination.” The Supreme Court found that the Planning Board took the requisite “hard look” at the potential impacts of the proposed project on the bordering historic district during a 20 month review period. The Court found that the Planning Board’s reliance on the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) which issued three letters concluding that it did not perceive any substantial impact to the neighboring historic district was reasonable. The Supreme Court upheld the negative declaration and dismissed the proceeding. The Historic Southside Neighborhood Association appealed the matter to the Appellate Division.

In its decision dated July 5, 2018, the Appellate Division, Second Department, in the Matter of Jeannette Peterson, etc., v. Planning Board of the City of Poughkeepsie, et al., 2018 N.Y. Slip. Op. 05049, reversed the Supreme Courts determination. Regarding the impact to the historic district the Appellate Division found the Planning Board’s reliance on the OPRHP insufficient stating that the Planning Board “merely relied upon a letter from the New York State Office of Parks, Recreations and Historic Preservation, which stated only that the proposed action would not have an adverse impact on the historic district. Such a conclusory statement fails to fulfill the reasoned elaboration requirement of SEQRA.”

Additionally, the Court reviewed the Planning Board’s determination regarding the potential impacts to vegetation or fauna cited in the negative declaration which stated that the proposed action would not result in the “removal or destruction of large quantities of vegetation or fauna.” However, the Environmental Assessment Form relied upon by the Planning Board noted the reduction of the 3.4 acre parcel’s forestation from 2.75 acres to 0.3 acres. The Court stated, “[i]n the context of this project, the level of deforestation is significant.”

Therefore, the Appellate Division found that the proposed action may have significant adverse environmental impacts upon one or more areas of environmental concern and determined that the Planning Board’s negative declaration was arbitrary and capricious. The matter was remitted to the Planning Board for the preparation of an Environmental Impact Statement.

Split zoned parcels can be a headache for property owners and practitioners.  In general, a split zoned parcel is a piece of land located in two or more zoning districts and divided by a zoning district boundary line.  Often these split zoned parcels are found at interfaces between commercial and residential uses or other areas of transition in the municipality.

Throughout New York, most zoning codes provide various ways to handle such conditions, often allowing applicants to extend one district or its permitted uses over a portion of the other district without needing to apply for a change  of zone.  Problems for applicants and practitioners arise when the proposed use on the property is prohibited on the other side of the  zoning boundary line.  Under those circumstances, applicants may face hostile boards or opponents claiming that because such use is prohibited in one of the districts, it requires a use variance.  As a use variance can often be an insurmountable hurdle, practitioners must carefully craft a record to support the proposed use for a split zoned parcel.

Recently, in  the City of Saratoga Springs, a neighboring restaurant owner sued to block a proposed pet kennel, claiming it required a use variance because kennels were prohibited in one of the two zones that split the property.  In other words, the restaurant owner was claiming that the prohibited tail was wagging the permitted dog.  Unfortunately, the restaurant owner was barking up the wrong tree, and in June of 2018, the Appellate Division affirmed the City of Saratoga Springs Zoning Board of Appeals (ZBA) determination that a use variance was not required for the proposed kennel project and granted the necessary area variances See, Wen Mei Lu v. City of Saratoga Springs—N.Y.S.33D —(3d Dept 2018).

In Wen Mei Lu, Pet Lodges Inc. submitted an application to the City’s Building Inspector in 2016, seeking approval of the proposed construction of a pet boarding facility.  The 6,000-square-foot kennel facility was planned for a 1.6 acre parcel of land that was split zoned Rural Residence and Tourist Related Business (TRB).  The smaller rear portion of the property, zoned Rural Residential, allows for animal kennels, but the TRB zone that comprises the larger portion of the property fronting on State Route 9, prohibits the use.

The application was denied by the City’s Building Department on the ground that the project required area variances for certain setback issues.  Pet Lodges Inc. then applied to the ZBA for area variance relief.  At the hearing, the restaurant owner’s attorney submitted letters and testimony claiming, among other things, that the kennel required a use variance, because it was a prohibited use in the TRB zone, and was fundamentally inconsistent with the permitted uses such as service establishments, eating and drinking establishments and bed and breakfasts.

The Appellate Division, in finding that the ZBA rationally determined a use variance was not required, noted that although kennels are prohibited in the TRB zone, under the City’s zoning ordinance, where a zoning district boundary line divides a lot or land, the district requirements on either side of the boundary may be construed, at the property owner’s option, as extending 100 feet into the remaining portions of the property.  Here, the applicant chose to extend the Rural Residential district where kennels are permitted into the TRB commercial zone where kennels are prohibited.

Finding that such an extension of a zoning boundary did not require a use variance, the Court went on to hold that the ZBA’s determination to grant the necessary area variances had a rational basis in the record.  The Court also determined that while a small portion of the facility’s parking area and driveway will lie within the TRB district, the ZBA rationally found that such accessory uses were not prohibited under the zoning ordinance.   The Court noted that ZBAs are “invested with the power to vary zoning regulations in specific cases in order to avoid unnecessary hardship or practical difficulties arising from a literal application of the zoning law.”

Given the potential complexities associated with split zoned properties, this decision provides some clarity as to what the courts and zoning boards are considering when faced with split zoned lots.

 

 

 

General Municipal Law §239-m requires that before taking action on a land use application, a municipal agency like a Zoning Board of Appeals or Planning Board must refer the application to a county or regional planning commission for its recommendation. This referral and receipt of comments and recommendations from the planning commission is no longer just a nicety. It is jurisdictional.

Any variance or site plan or other land use approval is null and void if the approving agency has not followed this referral procedure. e.g., Ernalex Constr. Realty Corp v. City of Glen Cove, 681 N.Y.S. 2d 296 [2d Dept.1998]; 24 Franklin Ave. R.E. Corp. v. Heaship, 30 N.Y.S.3d 695 [2d Dept. 2016].

Moreover, the statute of limitations does not even begin to run to challenge an agency action (the grant of a variance, for example) if the variance is jurisdictionally defective because the referral procedure was not followed. e.g., Hampshire Mgt. Co., No. 20, LLC v. Feiner, 860 N.Y.S.3d 714 [2d Dept. 2008].

Old news.

So, what happens if an agency grants a variance without following the referral procedure and then, perhaps realizing its mistake, grants an amended variance where it does make the proper referral to the planning commission?

In Fichera v. NYS Dept. of Environmental Conservation, 74 N.Y.S.3d 422 [4th Dept. 2018], the Fourth Department held that the original and the amended variances were both null and void. The applicant had received variances from the Town’s ZBA, and permits from the DEC needed to conduct mining. The ZBA and the applicant argued that the time to challenge the original variance had run and that the amended variance was perfectly fine because the referral process had been diligently followed.

The Appellate Division disagreed. First, the Court applied the “old news” rules above to find that the original variance was jurisdictionally defective because of the failure to follow the referral process. Then, they also held that the same jurisdictional defect tolled the statute of limitations so that the challenge to the original variance was timely. Therefore, the original variance was vacated as jurisdictionally defective.
What about the amended variance? Shouldn’t that be upheld because there was a proper referral and, therefore, no jurisdictional defect?

Not so fast, said the Court. The applicant’s problem was that the ZBA relied on the initial variance in granting the amended one: “Inasmuch as the determination granting an amended area variance was based on the initial, void determination, we further conclude that the ZBA’s approval of the amended variance is likewise null and void. . . .

One factor that appears to be important is that the planning commission had strongly recommended that the variance be denied. A zoning board can override the commission’s recommendation by a super-majority vote. Here, the ZBA had voted unanimously to override the commission’s recommendation to deny the amended variance. No good, said the Court: “[T]he subsequent vote cannot retroactively cure the jurisdictional defect in granting the original area variance upon which the ZBA relied in granting the amended area variance.”

The applicant’s and the ZBA’s problem, it appears, is that they took a short cut to rely on the original variance, at least in part, in deciding to approve the amended variance. In retrospect, they should have made a new determination. The Court agreed and remitted the matter back to the ZBA “for a new determination on petitioner’s application.”

Hindsight is always accurate, and the impetus to avoid re-hashing materials already reviewed is understandable. But the short cut here, especially in light of the opposition from the planning commission and organized concerned citizens, lead to a long road. A good lesson.

A few days ago, the Town Supervisor of the Town of Southampton and the Town Trustee President sent a letter to the State Comptroller and State Park Commissioner requesting an opinion as to whether Town Trustee property, known as Hayground Cove or the Rose Hill Drive Boat Ramp, a small waterfront area with a boat launch, is parkland.  If so, it would be regulated by New  York State’s strict interpretation of the public trust doctrine.

At issue is a private homeowner’s 15-year lease with the Trustees, which would  allow the neighboring waterfront estate exclusive use to portions of the Trustees property to construct a private driveway in exchange for maintaining the Town’s existing boat ramp.  Without state legislative approval, such exclusivity could be as thorny as a rose thicket and may run afoul of New York’s public trust doctrine.

The Public Trust Doctrine & Parkland Alienation

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses.  See,  Matter of Avella v City of New York, 29 NY3d 425 [2017].  New York’s public trust doctrine is based on English common law that has evolved over centuries.  In sum and substance, the public trust doctrine provides that certain land should, by use or by the purpose of its conveyance, be available for the use and enjoyment of the public.  Only the State Legislature has the power to alienate parkland. See, New York State Office of Parks, Recreation and Historic Preservation Handbook on the Alienation and Conversion of Municipal Parkland

Under New York State’s public trust doctrine, land can become parkland either by a formal dedication through express provisions (i.e. restrictions in a deed or a legislative enactment), or by implied dedication manifested by acts such as continued use as a park. Id.  Implied dedication of parkland occurs by actions or declarations by a local government that are unmistakable in their purpose and character as to intend to dedicate land for use as parkland. Examples include a municipality publicly announcing its intention to purchase the land specifically for use as a park and long continued and accepted use of land as a park can also constitute dedication through implication. Id.

Parkland alienation occurs when a municipality wishes to convey, sell, or lease municipal parkland or discontinue its use as a park no matter what  the size.  In order to legally convey parkland to a third party, or to use parkland for another purpose, a municipality must receive prior authorization from the New York State Legislature and be approved by the Governor.

In alienation cases, leases are carefully examined to determine the extent to which exclusivity is granted and a public benefit is served.  See, Lake George Steamboat Co. v. Blais, 30 NY 2d 48 [1972] (exclusive lease of a park’s marina space to a private sightseeing company was found to be parkland alienation).

The Hayground Cove-Rose Hill Road Boat Ramp

According to the Town of Southampton’s website, the Rose Hill Boat Ramp is a public boat ramp for town residents. The surrounding Town-owned land appears to be operated as a park in connection with that boat launch, which use has gone on for decades.  Under the lease agreement with the Trustees, in return for taking on the maintenance of the public boat ramp, the homeowner was able to move a line of trees from the middle of his property to the middle of the Trustees’ property, expanding the private lot’s circular driveway.  The tree-moving work has already been completed.

Conclusion

While it is laudable that the Trustees are attempting to maintain a town boat launch at no cost to town residents, which arguably could be a plausible public purpose, is that sufficient in light of the long history of New York courts prohibiting parkland alienation for non-park uses absent specific authorizing legislation?   We await a determination of the State Comptroller and Park Commissioner to see if the homeowner’s lease with the Town is valid. Either way, that decision could have a profound impact on similar agreements.  Stay tuned.

 

 

 

 

In April 2006, the Town of Huntington adopted a local law (Local Law 14-2006) that added § 198-27(A)(22) to its Zoning Code. That local law allows apartments on the top floors of some mixed-used buildings in its C6 General Business District, where the ground floor is occupied by a permitted commercial use. While the code provides certain restrictions on these upstairs apartments, such as no upper floor can exceed the footprint of the ground floor and the mixed used building must meet all height, area and bulk requirements, these limitations are not enough for some residents. They contend that the zoning allows too many apartments to be piled on top of a commercial establishment, resulting in over-development, traffic, pollution, loss of open space and other adverse impacts.

At the May 1, 2018 Huntington Town Board meeting, a petition signed by almost 1000 residents was presented to the board, demanding that the board hold a public hearing to revoke or significantly limit the number of apartments. Some of the proponents of this change noted at the meeting that Huntington “was becoming Queens” as a result of the 2006 local law. Several of the speakers pointedly reminded the Supervisor of statements he made during his campaign, to preserve the suburban nature of the Town. This grass-roots effort to change the zoning code may be having an impact on the Town Board.

The Supervisor reportedly asked the town’s planning department to review the C6 zoning provision in an effort to strike a balance between encouraging business development while at the same time preserving the quaint nature of the town. Once the planning department completes its review and issues its recommendation, the Town Board will then decide whether to hold a public hearing to change the zoning code. Stay tuned.


It turns out, according to the Supreme Court, Orange County, that the standards for review of municipal contracts are noticeably less stringent for New York Village Boards than for Town Boards.  Village Boards may approve a contract in principal, allowing the Mayor some room for further negotiation and language changes.  Town Boards must review and approve the actual, final contract; and the Supervisor may not refine or sign any other contract.  That was the Court’s analysis in Guazzoni v. Village of Tuxedo Park, ____ N.Y.S.3d ____, 2018 N.Y. Slip Op. 28177, 2018 WL 2946114 (Sup. Ct., Orange Co. 6/12/2018).

 

The Trustees of the Village of Tuxedo Park passed a resolution that the Village enter into a consulting agreement with an outside Consultant.  (The Court’s opinion does not disclose the nature of the consulting.)  The Board’s resolution states that the contract was to be “substantially” in the form reviewed by the Trustees, “together with such changes as may be reviewed by counsel and approved by the Mayor” and one of the Trustees.  The Mayor then signed a contract under which the consultant was paid approximately $5,371 per month and an additional sum of $800 per month for costs or reasons not discussed in the opinion.

Plaintiffs were not happy with the contract – again, for unspecified reasons.  They brought an action claiming that the Mayor had not been authorized to enter into the contract as it was finally drafted and signed after review and modification by counsel (presumably the Village Attorney), the Mayor and the single Trustee specified by the Board.

The Court held that a Village Board did not have to approve the final contract.  The Court recognized that statutory restrictions on a municipality’s power to contract serve the purpose of protecting the public from “corrupt or ill-considered actions of municipal officials.”  However, it was sufficient that the Trustees had authorized the Mayor to sign a contract that was substantially like the terms the Trustees had reviewed.

The Court relied on NY Village Law §4-412(1)(a) which defines the general powers of Village Trustees as, broadly speaking, the “management of village property and finances.”  The Village Law does not specify the manner in which village contracts must be made, and there is “no express statutory provision requiring village boards to approve contracts in their entirety before their execution by the mayor.”

In contrast, NY Town Law §64 defines the powers and duties of Town Boards and states that a Town Board “may award contracts” to “be executed by the supervisor in the name of the town after approval by the town board.”  Therefore, says this opinion, a Town Board must approve the exact contract with all details before the Supervisor can sign it – but Village Boards may approve the substance of a deal with a municipal contractor; and the Mayor may sign any contract that does not change the substance approved by the Trustees.

It was not strictly necessary for the Court to construe Town Law §64 to decide the village case before it – although the analysis is certainly interesting.  The lack of any detail of how the final contract negotiated by the Mayor and one of the Trustees differed from the substance approved by the Trustees is also intriguing.  Without that information it is difficult to know why the plaintiffs were concerned enough to bring an action challenging the contract and, more importantly, how this recent case may affect future municipal contracts.

Since the Court ultimately did not dismiss the complaint because the record was insufficient, the case will continue; and there might be further lessons to learn.  The lesson for now is that it is crucial to review the procedure by which contracts are adopted if your client is the municipality or a citizen challenging the municipality’s contracts.

 

For many decades, Long Islanders have been hearing about proposals to span over or under Long Island Sound. The most recent pronouncement for a cross-sound tunnel or bridge came from Governor Cuomo in his 2016 state-of-state address. This was followed by a report released by the New York State Department of Transportation (NYSDOT) in December 2017 (LI Sound Report) which examined the feasibility and regional benefits of a Long Island Sound crossing. More on this proposal later in this post. But first, a review of prior proposals.

Prior Proposals

According to the 2017 LI Sound Report, the first cross-sound proposal originated in the 1930s. That proposal involved an eighteen-mile bridge going from Orient Point to either Groton, CT or Watch Hill, RI. It faded from consideration upon the death of the senator championing the bridge and the start of World War II.

In the 1950s, another proposal involved two bridges, one from Oyster Bay to Rye/Port Chester and the other from Orient Point to Watch Hill, RI. Governor Harriman put the kibosh on this proposal due to its cost and low traffic predictions. (Clearly, not the most accurate traffic study ever done!)

During the 1960s, several proposals were floated, including one that would have extended the Long Island Expressway 30 miles from Riverhead to Orient Point and constructed two bridges from Orient Point going to New London, CT and Naptree Point, RI. Neither bridge was built and the LIE still terminates in Riverhead. In the mid-1960s, uber-road builder, Robert Moses, proposed constructing a 6.1 mile bridge from Oyster Bay to Port Chester, with a price tag of about $100 million. Although initially supported by Governor Rockefeller, the proposal ran into difficulties with then-new environmental impact study requirements. In 1968, a proposal to build two bridges, one between Oyster Bay and Rye and the other between Port Jefferson and Bridgeport, was considered. While the bridges were believed to be economically feasible, and would reduce the enormous increase in east-west traffic, this proposal also did not move forward.

The 1972 Long Island Sound Crossing project, which included realignments of the Long Island Expressway in Syosset and Route 95 in Rye, ran into local opposition and Governor Rockefeller stepped in and killed the project. In 1979, another proposal considered five different locations for a cross-sound bridge. The expected cost was $1.4 billion. The proposal ran out of gas when one study determined that a ferry would be better than a bridge to cross the Sound.

In 2008, the Polimeni/Long Island Cross Sound Link Tunnel proposal called for the construction of a 16-mile, three-tube, six-lane tunnel. Estimated to cost about $10-$13 billion, it ultimately failed due to waning state support and the economic recession.

The Latest Proposal

This leads us to the most recent proposal. While the 2017 LI Sound Report  looked at several options, it ended up recommending that five possible alignments should be further evaluated. These include two options for a western alignment, from Oyster Bay to Rye/Port Chester, for a bridge only or bridge/tunnel combination, and three options for a central alignment, from Kings Park to Bridgeport or Devon, for bridge only and two different bridge and tunnel connections. The 2017 LI Sound Report also looked at a third alignment, called the eastern alignment, from Wading River to New Haven or Branford, but was rejected as not meeting the project’s goals. These goals include decreasing travel time, decreasing congestion, improving air quality, expanding labor markets, improving evacuation off of Long Island and improving freight movement.

The 2017 LI Sound Report looked at engineering considerations of what would be one of the largest projects of its type in the world. Essentially – can this project be built? The study also evaluated environmental considerations, including impacts to wetland, waterbodies, groundwater, ecology, natural resources, critical environmental areas, farmland, air quality climate change, noise, asbestos and hazardous wastes. The study also looked at capital and financial considerations, including the estimated cost to build the project ($55 billion), the demand for the crossing and possible tolls that would be charged for its use.

The release of the 2017 LI Sound Report in December 2017 was followed up in January 2018 by a Request for Expressions of Interest issued by the NYSDOT (RFEI). The RFEI requested input for all aspects of the proposal, with the ultimate goal of issuing a Request for Proposal to build the project in the future. It is reported that six major developers responded to the RFEI.

The Reaction To The Proposal

Business groups such as the Long Island Association and the Long Island Builders Institute noted that the project deserved serious consideration and could help alleviate Long Island’s massive traffic issues. Not unexpectedly, local politicians and residents from Bayville, Syosset, Ashaorken, Brookville, Lattingtown, Sea Cliff, Lloyd Harbor, Oyster Bay, Upper Brookville and other local communities voiced strenuous objections to this project. Among other issues, the residents and politicians claim that the tunnel’s ventilation/exhaust and emergency access systems would adversely impact air quality, would increase traffic congestion in their neighborhoods, would contaminate the groundwater and cause other environmental catastrophes. Community meetings are being held across Long Island by the opponents of the project. The next one is scheduled for June 14th in Syosset.

Next Steps

While the project will undergo multiple years of further study before being built, and is proposed by a Governor who has been instrumental in replacing aging infrastructure with new state-of-the-art structures that others said would never be built (e.g., the Tappen Zee Bridge), it will be interesting to see if the Long Island Sound Crossing Project gets built or becomes another proposal that is DOA on the drawing board.